CIVIL LAW & MOTION

City of Carpinteria vs Larry Burkhart

Case No:

1439588

Hearing Date:

Mon Jan 27, 2014 9:30

Nature of Proceedings: Petition to Determine if Dog is Potentially Dangerous

# 1439588 CITY OF CARPINTERIA V. LARRY K. BURKHART
Date: January 27, 2014
Matter: Petition to determine if dog is potentially dangerous
Tentative Ruling:
Petitioner City of Carpinteria has filed a petition to determine if a white and brown male
American Staffordshire pit-bull named Jake, owned or kept by respondent Larry K. Burkhart,
is a potentially dangerous dog. The petition is based upon the provisions of Food &
Agriculture Code §§ 31601, et seq., which set forth a progressive statutory scheme
designed to address the threat to public health and safety posed by vicious and potentially
dangerous dogs.
This law allows a dog to be declared “potentially dangerous” under specified
circumstances, including when the dog has, when unprovoked, on two separate occasions
within a 36-month period, killed, seriously bitten, inflicted injury, or otherwise caused injury
attacking a domestic animal off the property of the owner or keeper of the dog. F&AC §
31602(c). Such a finding has consequences, including requirements that the dog be
properly licensed and vaccinated (§ 31641), be kept indoors or in a securely fenced yard
from which it cannot escape and into which children cannot trespass when on the owner’s
property, and may only be off premises if restrained by a substantial leash of appropriate
length under the control of a responsible adult (§ 31642), and a requirement that animal
control be advised if the dog dies, or is sold, transferred, or permanently removed from the
city or county where the keeper resides (§31643). If there are no additional instances of
proscribed behavior within 36 months from the date the dog is designated potentially
dangerous, the dog will be removed from the list of potentially dangerous dogs. That can
happen earlier if the owner demonstrates a change in circumstances that has mitigated the
risk to public safety. (§ 31644).
If, however, the dog declared potentially dangerous has further instances of proscribed
behavior, or if the owner does not comply with the limitations set forth in Sections 31641-
31643, the dog can be declared “vicious.” F&AC § 31603(c). Under Section 31645, a dog
determined to be vicious may be destroyed if its release would create a significant threat to
the public health, safety, and welfare; if not destroyed, conditions must be imposed to
protect such public health, safety, and welfare. § 31645.
Here, the City has presented declarations, including that of the City’s Code
Compliance/Animal Control Officer, David Hernandez, establishing that animal control
received a call from Respondent Burkhart on 5/1/13, informing them that Jake had strayed
off the property and attacked a Retriever named Hershey, causing a puncture wound.
Hershey’s owner, Dale Frary, provided a declaration describing the incident, in which he
was walking Hershey on a leash and saw Jake sitting in a car. Jake suddenly ran toward
them and attacked Hershey, going for her throat and pinning her to the ground. Ultimately,
Mr. Burkhart was able to retrieve a lease and control Jake, who received a puncture wound.
Mr. Frary also suffered a contusion to his face.
Animal control sent Burkhart a code compliance letter on 5/8/13, advising him that the
attack on Hershey constituted the first incident of potentially dangerous behavior under
F&AC § 31602(c), and warned that if Jake exhibited further potentially dangerous behavior,
the City would petition to have Jake determined a potentially dangerous dog. Burkhart was
issued an administrative citation with a $100 penalty, which he paid.
On December 2, 2013, animal control was dispatched after a 911 call was received about a
stray pit bull terrier. It was learned that Tamie Jo Blais was walking her dogs, when Jake
jumped the fence and attacked her dogs. Ms. Blais has provided a declaration describing
the incident, stating she was walking both of her dogs (Willie and Jack, the latter of which
had a cone around his neck after a recent vet visit) on retractable leashes, when she saw
Jake in a yard enclosed with a wrought iron fence. As they walked by on the sidewalk, Jake
started growing and charged at the fence, getting his head stuck in it. She crossed the
street to get away from him, and when she looked back at him after doing so, he jumped
the fence and charged them. She turned her back, and Jack slammed into her body. She
heard her dog Jack yelp, and turned to see that Jake had Jack by the shoulder. A man
driving by stopped to help, and was able to get her dogs away. She grabbed Jake by his
collar, after which a woman came out of the residence to gain control of him. She was
scratched, and there was a lot of blood. Jack suffered a puncture wound, which had to be
cleaned and stapled shut, and he was given antibiotics. The man who assisted was
Ricardo Zuniga, who has also provided a declaration describing the incident.
Burkhart was sent a second code compliance letter about the incident, advising him that
the City would be filing this petition. He was issued an administrative citation with a $200
penalty for allowing Jake to stray off the property.
This petition was then filed on January 10, 2014. City contends that the two incidents show
there is probable cause to believe that Jake should be declared potentially dangerous. They
seek to have Burkhart fined $500 for each future violation under Section 31662, ordered to
comply with Sections 31641-31643, and ordered to wear a muzzle at all times when off the
owner’s property.
Anaysis:
The owner has the ability to appear in court and present evidence as to why Jake should
not be declared potentially dangerous. Because there is no way of knowing what evidence
he might present (e.g., that the dog was provoked, etc.), there can be no definitive tentative
ruling.
However, the incidents which occurred, which are supported by the evidence presented
with the petition, would support a finding that Jake is “potentially dangerous” under Food &
Agriculture Code section 31602(c). Specifically, in each instance, Jake left the owner’s
property on two occasions within a 36 month period and inflicted injury upon other domestic
animals. Assuming there is no issue of provocation, or other evidence presented which
shows that Jake is not potentially dangerous, it would appear appropriate to make the
finding, and order Jake to be subject to the additional requirements of Sections 31641-
31643, and ordered to wear a muzzle off the property.